In re Pilger

• Decision Date: 03 November 1902
• Citation: 118 F. 206
• Parties: In re PILGER.
• Court: U.S. District Court — Eastern District of Wisconsin

118 F. 206

In re PILGER.

United States District Court, E.D. Wisconsin.

November 3, 1902

Turner Pease & Turner, for creditors.

Kanneberg McGee & Cochem, for debtor.

SEAMAN District Judge.

The issues of insolvency and of commission of an act of bankruptcy having been determined upon the hearing before a jury, the questions of jurisdiction remain for consideration. Two objections are raised to adjudication of bankruptcy under the petition: (1) That the petition contains no averment that Pilger was not a wage-earner, and the testimony shows that he was such in fact; (2) that one of the three petitioners (R H. Schwab & Sons Company) was not a creditor.

The testimony is undisputed that the alleged bankrupt was secretary and stockholder of a bankrupt corporation (Egan Engineering Company) up to the adjudication of bankruptcy against that corporation; that as secretary he was financial manager and 'solicitor' for business, at a salary of $100 per month, and that he had no other business; that the alleged act of bankruptcy occurred April 23, 1902; and that when the petition herein was thereafter filed he was earning $65 to $70 per month as a bookkeeper in the employ of other persons. Section 4b of the bankruptcy act authorizes involuntary proceedings against 'any natural person except a wage-earner or a person engaged chiefly in farming or the tillage of the soil'; and section 1(27) defines a wage-earner as 'an individual who works for wages, salary or hire, at a rate of compensation not exceeding one thousand five hundred dollars per year.' No jurisdiction exists to adjudge involuntary bankruptcy against a person who is within either of these exceptions. In re Taylor, 42 C.C.A 1, 102 F. 728. Whether a petition is defective which is made in the general form prescribed by the supreme court rules in that behalf, and does not negative these exceptions, has not been directly decided in any case called to my attention; nor is the question material to the present controversy, as the facts are undisputed, and an amendment of the petition would cover any such defect in the event of clear proof that the alleged bankrupt was not within either exception. When jurisdiction thus depends upon a specific fact or condition, the presumption is against jurisdiction, and, unless the proof presents a case to which the exception is clearly inapplicable, the bankruptcy court cannot take cognizance. In re Plotke, 44 C.C.A....